Judge Ashfaq G. Chowdhury, Case Number: 20STCV39629, Date: 2023-09-25 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 20STCV39629, Date: 2023-09-25 Tentative Ruling

Case Number: 20STCV39629 Hearing Date: September 25, 2023 Dept: E

August 10, 2023 20STCV39629 Bergman v. Halamendaris

Comments on Plaintiff’s Motion for new trial, filed August 8, 2023

Governing Law and Procedure

The motion, such as it is, was timely filed and served. CCP 657.

At the hearing on this motion, if any, the Court will permit oral argument which is not repetitive of the arguments made in the parties’ respective papers. No testimony will be permitted. CCP section 661; Linhart v. Nelson (1976) 18 Cal.3rd 641, 644.

The Court has very broad discretion on a Motion for new trial. Barrese v. Murray (2011) 198 Cal. App. 4th 494, 503. The court is to essentially engage in a de novo review of the evidence and inferences, and to reconsider the evidence, including credibility. Seffert v. Los Angeles Transit Lines (1961) 56 Cal. 2d 498, 507; Maroney v. Iacobsohn (2015) 237 Cal. App. 4th 473, 486; and Ryan v. Crown Castle NG (2016) 6 Cal. App. 5th 775, 784, 786.

The motion must be based expressly upon one or more grounds listed in CCP 657. Kabran v. Sharp Memorial (2017) 2 Cal. 5th 330, 336-337; Fomco v. Maggio (1961) 55 Cal. 2d 162, 166. Plaintiff complies with CCP 657, citing one of the grounds listed in 657 in her motion. However, she filed and served no notice of intent to move for new trial, but simply filed the motion itself. Most important, there is no proof of service of Plaintiff’s Motion on Defendant. No Notice was given. This violates CCP sections 1005 and 659, and is grounds alone for denial of this Motion.

Plaintiff argues that her Motion for new trial is based upon irregularity in the proceedings at trial (CCP 657-1), but she must present specific evidence of irregularity in the proceedings which was prejudicial. To meet her burden of showing prejudice in this context, Plaintiff must convince the court that there is a reasonable probability that she would have obtained a more favorable verdict than she did absent the alleged irregularity. Cassim v. Allstate Insurance Company (2004) 33 Cal. 4th 780, 800; Fernandez v. Jimenez (2019) 40 Cal. App. 5th 482, 492, rehearing and review denied, 2020. The sole irregularity in the proceedings claimed by Plaintiff is the Court 's ruling that Plaintiff waived jury in this matter. See, minute order of May 8, 2023, in this case.

The Court must rule upon the Motion for new trial within 75 days of the first notice from moving party, here, Plaintiff, that they are seeking a new trial. CCP section 660 (b), (c). The Court concludes it must rule on this motion on or before October 20, 2023.

If the Court grants a new trial, the court must expressly specify, in writing, its reasons for granting the motion. CCP 657. However, upon the denial of a motion for new trial, the court need not identify specific reasons or grounds for the denial. Neal v. Farmers Insurance (1978) 21 Cal. 3rd 910, 931.

The Evidence

The trial of this matter was conducted as a bench trial on May 15, 2023. There was a record made by a CSR. The entire trial took approximately 4 hours from beginning to end on May 15, and neither side requested a Statement of Decision per CCP section 632.

The Court’s minute order of May 8, 2023, expresses the rationale behind the Court 's ruling that Plaintiff had waived jury in this matter, pursuant to CCP section 631(f)(5). The Court exercised its discretion under CCP 631(g), declining to grant Plaintiff relief from this waiver. TriCoast Builders, Inc. v. Fonnegra (2d. dist-2022) 74 Cal. App. 5^th 239, rev. grt’d.

On a Motion for new trial, the Court considers the evidence and reasonable inferences raised thereby and must also consider the credibility of the parties and their witnesses.

Plaintiff presented no admissible evidence of her medical bills, although she did testify to the injuries she claimed to have suffered in this accident of 10/26/2018. She was partially impeached in this by her deposition testimony of 1/24/23 in this case, and the claims in her separate lawsuit relating to a slip & fall accident she had in 2017, as well as her deposition testimony of 12/12/22 in the latter case.

Plaintiff presented no admissible evidence of the value of her vehicle, and no evidence of the value of the personal property she claimed to have lost in the automobile accident. Plaintiff was impeached with respect to the existence and value of that property, as well as her claim for lost earnings. As to the latter, Plaintiff testified in deposition that she had retired and had not done any work for pay nor earned any money for several years prior to this accident, since 2005.

Defendant admitted liability for the subject collision. However, Plaintiff was further impeached with respect to her version of the severity of the impact of the collision. Plaintiff testified initially that the impact with Defendant’s vehicle pushed her vehicle from the residential street on which the accident took place over the curb and on to the parkway, the sidewalk, or the front yard of the home adjacent to the collision. Plaintiff later withdrew at least partially from this position.

Defendant testified under oath that she merely sideswiped Plaintiff’s vehicle at a point when both were at a very low rate of speed, and that the impact pushed Plaintiff’s vehicle to the side towards the curb. Plaintiff and Defendant both testified that they each then pulled to the curb. Further, the percipient witness that Plaintiff called, Jerry Ibanez, testified under oath corroborating Defendant’s version of the collision. Defendant’s Exhibits 1, 2, 3, and 4 (photos of car and scene) were admitted and further corroborated Defendant’s testimony.

After both parties rested, the Court rendered a verdict, since reduced to the Judgment of 6/8/2023, for $5,000.00 in Plaintiff’s favor.

The evidence presented by both parties supports the verdict substantially. Plaintiff presented no evidence which would support a greater verdict. The several instances of impeachment as to Plaintiff’s testimony did not help her case in the eyes of the Court. California Evidence code, sections 312, 411, and 780.

The Court 's verdict was neither obviously nor clearly wrong, in that it was supported by substantial evidence and reasonable inferences drawn there from. This is true whether one considers Plaintiff’s diminished credibility or not, and whether there was some conflict in the evidence and inferences or not. In short, neither the law nor the evidence supports Plaintiff’s current claim that either the Court should have reached a different verdict, or that a jury would have reached a different verdict on the same evidence. Even assuming for purposes of argument that the Court should have granted Plaintiff a waiver of jury fees, and excused her resulting jury waiver, the Court finds that Plaintiff has failed to meet her burden to show that such error, if error there was, was likely to have affected the outcome of the trial. In other words, it is Plaintiff’s burden on this motion to show not only that the Court erred, but also that the error was prejudicial; that is, that absent the error, in front of a jury, Plaintiff would have obtained a more favorable verdict or decision than she did. Plaintiff failed to meet this burden.

Plaintiff’s Motion for new trial is denied.